The Coastal Zone Management Act (CZMA) provides for management of the nation’s coastal resources, including the Great Lakes, and balances economic development with environmental conservation. The CZMA is administered by the National Oceanic and Atmospheric Administration (NOAA) at the Department of Commerce.
The CZMA requires that any applicant for a federal license or permit for an activity affecting any land or water use or natural resource of a state’s coastal zone certify to the federal permitting agency, as well as the affected state, that the applicant’s proposed activity complies with the enforceable policies of the state’s federally-approved coastal zone management program. 16 U.S.C. § 1456(c)(3)(A). The federal agency may not grant a license or permit for the proposed activity until the affected state has concurred with the applicant’s certification or until, by the state’s failure to act, the state’s concurrence is conclusively presumed, unless the Secretary of Commerce, on his own initiative or upon appeal by the applicant, finds that the activity is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security.Id.
The NGA applicant initiates the state’s CZMA review of the project, known as federal consistency review, by providing the federal permitting agency and the affected state with a certification of the consistency of the proposed activity with the enforceable policies of the state’s federally-approved coastal zone management program, as well as any “necessary data and information,” for the state’s review. 15 C.F.R. § 930.57 (2006). Once the state receives the consistency certification and all “necessary data and information,” the state will review the proposed activity for consistency and the state will have six months to object to or concur with the applicant’s certification. 15 C.F.R. §§ 930.60(a), 930.62(a) (2006). If the state fails to act within that six months, the state’s concurrence is conclusively presumed. 16 U.S.C. § 1456(c)(3)(A).
If the affected state objects to an applicant’s consistency certification, the applicant may appeal the objection to the U.S. Secretary of Commerce. The Secretary of Commerce may override the state’s objection if the activity is (a) consistent with the objectives of the CZMA or (b) otherwise in the interest of national security. 16 U.S.C. § 1456(c)(3)(A). As a threshold matter, the Secretary of Commerce may override a state’s consistency objection if the objection is not in compliance with the requirements set forth in the CZMA or NOAA’s implementing regulations for the state’s consistency review. 15 C.F.R. § 930.129(b). Over the last several years, two proposed pipeline projects have appealed state objections to the Secretary of Commerce